Among a flurry of decisions on Tuesday, the Supreme Court overturned California’s law requiring so-called crisis pregnancy centers — outposts set up by anti-abortion groups to dissuade pregnant women from having the procedure — to inform women about what reproductive health services they can get elsewhere, on the grounds that it violates their First Amendment rights.
Advocates for women’s health immediately assailed the decision as enabling these centers to carry on with deceptive practices they’ve been using for decades to lure in unsuspecting women and then bombard them with anti-abortion propaganda.
“Because they aren’t real medical clinics, they’re able to avoid a lot of the regulation and oversight that legitimate healthcare providers are subject to,” Pilar Herrero, the human rights counsel for the Center for Reproductive Rights, told the Voice before yesterday’s ruling. “This can make it really difficult for patients to understand what kind of care or services they’re actually able to receive at these places, and can also divert patients from accessing the real medical care that they need in a timely manner.”
The case, National Institute of Family and Life Advocates v. Becerra, took on California’s Reproductive FACT Act, passed in 2015, which required that all licensed clinics that don’t provide a full range of reproductive care to post information about state-provided affordable reproductive care, including prenatal care, birth control, and abortions. The law also mandated that unlicensed clinics with no medical provider disclose that they were not licensed medical facilities.
While California presented the FACT Act as a truth-in-advertising measure, the National Institute of Family and Life Advocates — a Virginia-based nonprofit that provides legal advice to anti-abortion centers — argued that the law violated centers’ First Amendment rights. In a 5-4 decision, the Supreme Court agreed, overturning two lower-court rulings that had upheld the California restrictions. Justice Clarence Thomas wrote for the majority that the law “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”
Crisis pregnancy centers, which outnumber genuine women’s clinics nationwide by a large margin, have frequently been accused of providing inaccurate medical information. A 2015 study by NARAL Pro-Choice California that sent undercover investigators into CPCs found that 91 percent of the centers told the visiting women that abortions cause breast cancer, miscarriage, infertility, or “post-abortion depression.”
Christina Chang, chief external affairs officer of Planned Parenthood of New York City, told the Voice that CPCs target pregnant women who are unsure about their options, and may be confused and looking for accurate information. By providing free services such as ultrasounds and pregnancy tests, she explains, these centers attempt to convince women that they are talking to a legitimate healthcare provider: “It’s really just an excuse to try to dissuade them from getting information that they need to make the best decision for themselves.”
Elizabeth Estrada, New York field and advocacy manager at the National Latina Institute for Reproductive Health, noted that being propagandized by someone posing as a healthcare provider is especially troubling for women who are already facing cultural stigma or a lack of family support. “Being lied to by someone you think is going to support you in an already really difficult decision is hugely disappointing and hurtful,” she said.
As advocates mull over these concerns, anti-abortion organizations are applauding the decision. NIFLA celebrated the victory on its website, exclaiming, “VICTORY! The U.S. Supreme Court just handed down a 5-4 ruling on the NIFLA v. BECERRA case, overturning the coercive law that forced pro-life pregnancy centers to provide free advertising for tax-funded abortions.”
For New York City, which requires its roughly one dozen CPCs to post that they do not have a licensed medical provider on staff — a law that many of them have flouted — the impact of the Supreme Court’s decision is not immediately clear. NARAL Pro-Choice America president Ilyse Hogue noted yesterday that the court said it would consider upholding a narrower law requiring centers to post that they’re not medical providers, which would seem to provide hope that New York City’s law would pass muster.
There’s also been some discussion that this ruling could provide an avenue for organizations to challenge “informed-consent” laws that require doctors to provide state-mandated information on abortions that can at times be incorrect. The Supreme Court’s NIFLA ruling, says Amy Myrick, staff attorney for judicial strategy at the Center for Reproductive Rights, tries to set aside these restrictions by “saying that they’re related to informed consent for a medical procedure — an area in which it’s permissible for the state to mandate speech,” even though presenting false and misleading information strays far from bona fide “informed consent.”
And Hogue has also noted that even if this court case was fought on strictly First Amendment grounds, it’s likely only one step in a legal battle by opponents of reproductive rights to take advantage of the Trump Supreme Court to overturn legal abortion:
Make no mistake, they are setting the stage for a direct hit on #RoeVWade and depending on Trump to deliver on his campaign promise to add justices to the bench who will vote to overturn.
— ilyse hogue (@ilyseh) June 26, 2018
Reproductive rights legal advocates are currently working to identify which cases making their way through the lower courts are likely to present the next Supreme Court challenge to abortion rights. Anthony Kennedy’s impending retirement has never seemed more pivotal.